Citation Nr: 0207888
Decision Date: 07/16/02 Archive Date: 07/19/02
DOCKET NO. 99-06 872 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Sioux
Falls, South Dakota
THE ISSUE
Entitlement to an initial evaluation in excess of 30 percent
for service-connected posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Bonnie A. Yoon, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1968 to January
1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 1998 rating decision of the
Department of Veterans Affairs (VA) Medical and Regional
Office (RO) in Sioux Falls, South Dakota, which denied the
benefit sought on appeal. By a decision in July 2000, the
Board affirmed the denial.
In an Order dated in May 2001, the United States Court of
Appeals for Veterans Claims (Court) vacated the Board's July
2000 decision, and remanded the matter to the Board.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. Throughout the rating period, the veteran's PTSD has been
shown to be manifested by difficulty maintaining social and
professional relationships, phobias in crowds, problems
sleeping with traumatic flashbacks and suicidal and homicidal
ideations, productive of no more than occupational and social
impairment with reduced reliability and productivity.
CONCLUSION OF LAW
The criteria for an initial rating of 50 percent for PTSD
have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West
1991 & Supp. 2001); 66 Fed. Reg. 45,620, 45,630-32 (Aug. 29,
2001) (to be codified as amended at 38 C.F.R. § 3.159); 38
C.F.R. § 4.130, Diagnostic Code 9411 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
At the outset of this decision, the Board finds that VA has
met its duty to assist the veteran in the development of his
claim for an increased rating for PTSD and its duty to notify
the veteran of any information and evidence needed to
substantiate and complete this claim under the Veterans
Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp.
2001). The rating decision, statement of the case and
letters to the veteran and his representative provided notice
of the information and evidence necessary to substantiate the
veteran's claim, the applicable law, and the reasons and
bases for the VA's denial. The veteran was afforded a VA
examination, and the RO made reasonable efforts to obtain
relevant records adequately identified by the veteran. All
evidence identified by the veteran relative to this claim has
been obtained and associated with the claims folder.
The veteran contends that he is entitled to an increased
rating for PTSD on the basis that his current symptoms are
more reflective of a higher rating than the 30 percent
currently assigned. Historically, the February 1998 rating
decision granted service connection for posttraumatic stress
disorder and assigned a 30 percent rating effective September
17, 1997.
Because this case arises from an initial rating decision
which established service connection and assigned the initial
disability evaluations, it is not the present level of the
disabilities which are of primary importance, but rather the
entire period is to be considered to ensure that
consideration is given to the possibility of staged ratings;
that is, separate ratings for separate periods of time based
on the facts found. Fenderson v. West, 12 Vet. App. 119
(1999).
The veteran was afforded a VA psychiatric examination in
November 1997. At that time, it was noted that the veteran
was currently working in a protected environment with an
understanding supervisor, and that he had been employed for
17 1/2 years. The veteran related traumatic events which he
experienced in service. The veteran reported symptoms
included difficulty sleeping, difficulty concentrating,
hypervigilance, and exaggerated startle response. The
examiner reported that the veteran has had marked difficulty
relating to his wives, and has had adequate occupation
function, but with some impairment with irritability and
difficulty with maintaining work. In the past, he had lost
work because of irritability, but this was prior to working
at the Medical Center. The symptoms were chronic and had
continued from his return from Vietnam.
Mental status examination noted that the veteran was on no
medications. There was no impairment in thought processes
and communication, but he reported difficulty in saying what
he wanted to say on occasion. There had been no delusions or
hallucinations. He had some inappropriate behavior often,
trying to diminish his irritability. He had chronic suicidal
and homicidal ideations, but no plan for either. He
maintained good personal hygiene and his other activities of
daily living. He was oriented times four. His remote memory
was intact. His recent recall, however, was impaired. He
displayed no ritual behavior interfering with routine
activities. His speech was logical, fluid and goal directed.
He had had marked phobia regarding being in crowds which had
caused panic attacks. He also had a phobia of people in
general. He had had some depressive symptoms regarding mood
and low energy, and he experienced considerable anxiety. He
had impaired impulse control and it affected his motivation
and mood. He had marked difficulty with sleep maintenance.
He denied flashbacks but had recurrent nightmares. No
psychological testing was deemed necessary. The diagnosis
was PTSD, severe with significant impairment in social
functioning. The Global Assessment of Functioning (GAF)
score attributable to PTSD was 65 over 65, during the past
year. The examiner noted that the veteran was currently
functioning very well work-wise because of the protected
environment. The examiner noted that he would not be
functioning so well if he were in another non-supportive
setting other than working in engineering at the VAMC.
In January 1999, the veteran reported that a physician had
suggested medications and described their side-effects
resulting in the veteran deciding against taking the
medications at this time. He reported that he continues to
have difficulty sleeping and that his first marriage of 16
years had ended in divorce.
Given the evidence as outlined above, the Board must look to
the Schedule for Rating Disabilities to determine the
appropriate disability evaluation. Diagnostic Code 9411 of
38 C.F.R. § 4.130 sets forth the criteria for evaluating PTSD
using Diagnostic Code 9440. To obtain a 70 percent
evaluation, there must be symptoms reflecting occupational
and social impairment with deficiencies in most areas, such
as work, school, family relations, judgment, thinking or
mood, due to such symptoms as: suicidal ideation, obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near
continuous panic or depression affecting the ability to
function independently, appropriately, and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships.
To obtain a 50 percent evaluation, there must be symptoms
reflecting occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships.
For a 30 percent evaluation there must be symptoms reflective
of occupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks (although generally
functioning satisfactorily, with routine behavior, self-care,
and conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events).
Based on the above, the Board finds that the veteran's
symptoms most closely approximate the criteria for a 50
percent evaluation. Specifically, the veteran experiences
many severe symptoms including depression, panic and anxiety
symptoms, especially in public, and problems sleeping with
flashbacks. The veteran does also state that he spends his
time alone, especially to avoid any triggers to his symptoms.
He also states that he has an inability to maintain loving
relationships with his former wives and his children. Also,
the veteran often had difficulty in work-related situations,
but was able to be productive primarily due to an
understanding supervisor who was aware that he was a Vietnam
veteran. The VA examiner felt that the veteran would not be
able to be successful in a work situation without the
understanding supervisor. The VA examination also indicated
the veteran to be fully oriented with appropriate judgment,
but with an affect constricted in range, anxious and tense
mood, very limited insight and suicidal and homicidal
ideations. The VA examination in November 1997 reflects the
veteran to exhibited a GAF Scale score of 65 due to PTSD,
which indicates difficulty in social and occupational
functioning. When his complaints and examination findings
are compared to the schedular criteria for PTSD, the Board
finds that the evidence more nearly approximates the level of
disability contemplated by a 50 percent evaluation.
Therefore, the Board finds that the evidence supports a 50
percent evaluation for the veteran's PTSD.
The potential application of various provisions of Title 38
of the Code of Federal Regulations have also been considered
but the record does not present such "an exceptional or
unusual disability picture as to render impractical the
application of the regular rating schedule standards." 38
C.F.R. § 3.321(b)(1) (2001). In this regard, the Board finds
that there has been no showing by the veteran that the
service-connected PTSD has resulted in marked interference
with employment or necessitated frequent periods of
hospitalization beyond that which has been discussed herein
so as to render impractical the application of the regular
rating schedule standards. In the absence of such factors,
the Board finds that the criteria for referral of this case
for consideration of assignment of an extraschedular rating
pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See
Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown,
8 Vet. App. 218, 227 (1995).
ORDER
Entitlement to an initial rating of 50 percent for PTSD is
granted, subject to the applicable law governing the payment
of monetary benefits.
U. R. POWELL
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.